June 8, 1987

FACTS:


You are a member of the Board of Selectmen of a Town. Your son is a patrolman with the twenty member Town police department and is interested in a promo-

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tion to sergeant. The patrolmen are represented by a union; the sergeants are not organized and negotiate informally with the Town. You state that the salary of the sergeants is not tied to or otherwise dependent on the base salary of or increases negotiated by patrolmen.


QUESTION:


In view of your son's status as a police officer, what limitations does G.L. c. 268A place on your participation as selectman in police department matters?

ANSWER:


You are subject to the restrictions discussed below.


DISCUSSION:


As a member of the Board of Selectmen, you are a municipal employee for the purposes of G.L. c. 268A. Two sections of G.L. c. 268A regulate your official activities as a Selectman.



1. Section 19



This section prohibits you from participating [1] in any particular matter [2] in which your son has a financial interest. Graham v. McGrail, 370 Mass. 133 (1976). Included within the prohibition are all votes, decisions, determinations and contracts in which your son has a reasonably foreseeable financial interest. For example, you may not approve a collective bargaining agreement which provides for a salary increase for your son and other patrolmen. You must also refrain from any decisions relating to the reappointment or promotion of your son.

On the other hand, the s.19 abstention requirement does not extend to all police department matters but only to those matters in which your son has a reasonably foreseeable financial interest. EC-COI-84-98. For example, you are not required to abstain from deciding whether to appoint new patrolmen or to reappoint regular and special police officers (aside from your son), matrons and the chief because your son does not have a financial interest in these decisions. For the same reason, you may participate in decisions concerning the salary for the police chief and matrons, inasmuch as the salary of police officers is negotiated independently of these salary levels.

If your son is promoted to sergeant, you will no longer be prohibited from participating in decisions relating to your son's financial interest as a patrolman. The prohibition, however, will apply to your participation in matters such as contracts and decisions affecting your son's financial interest as a sergeant.



2. Section 23



In addition to s.19, your participation in police matters must also satisfy the standards of con duct contained in s.23. Section 23 prohibits you from:


1. using your official position to secure unwarranted privileges or exemptions of substantial value for your son (s.23(b)(2)); or

2. engaging in conduct which creates a reasonable impression that your son or the police department will unduly enjoy your favor (s.23(b)(3)).


By making a public disclosure of the fact that your son is a member of the police department, you will dispel any impression of undue favoritism under s.23(b)(3). You must bear in mind the standards of s.23 whenever you participate as a Selectman in matters affecting the police department. For example, your decision
concerning the retention of or salary of the chief must be based on objective standards and cannot be based on how well or how poorly your son has been treated by the chief. You must also continue to comply with the confidentialiry restrictions of s. 23(c) by not disclosing to your son any confidential information relating to the Town's bargaining strategy in its collective bargaining negotiations with the patrolmen's bargaining unit.


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[1] "Participate, is defined as participate in agency action or in a particular matter personally and substantially as a state, county and municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, s.1(j).

[2] "Particular matter," is defined as any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding but excluding enactment of general legislation by the general court and petitions of
cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property. G.L. c. 268A, s.1(k).

End Of Decision